Difficult Da‘wah Questions

Chopping Off Of Heads And Hands And Stoning To Death

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Muslim application of criminal law has often been described as Medieval Draconian laws. The application of capital punishment has been banned by the UN and the ECC.

Punishment in Western penology served three functions:

  1. Retribution (justification looking to the past – i.e. punishment, revenge)
  2. Deterrence (justification looking to the future – i.e. prevention)
  3. Reformation

In The Report of the Departmental Committee on Corporal Punishment in England, 1938, the committee’s unanimous opinion was that “corporal punishment was of no value as a deterrent and should be abolished.”

In 1952, in the USA, Justice Hugo Black wrote:

“Retribution is no longer the dominant objective of criminal law. Reformation and rehabilitation of offenders have become important goals of criminal jurisprudence.”

In 1972, Justice Thurgood Marshall wrote:

“Punishment for the sake of retribution is not permissible under the Eighth Amendment.”

In the same year, California’s capital-punishment law was declared unconstitutional. [1] Punishment in Islamic Law, Muhammad Saeed El Awa, p. 87.

For some criminologists “reformation” has become synonymous with “cure”. The criminal is no longer a “bad man” but a “sick man.” [2] Crime and the Penal System, Howard Jones, 3 A convict needs treatment. He is genuinely ill, perhaps physically, almost certainly mentally, and psychiatrically.

The Abolition of the Death Penalty Act of 1965 cancelled capital punishment for murder. The Home Secretary announced on 22nd April 1970 that 172 convicted murderers had been released from prison since 1960, most of them having only served nine years or less of their statutory life sentence. Only five served 12 or more years, nine served 6 or less and one completed only 6 months. [3] Ibid., p. 88

These are not cases of mistaken ruling which was corrected. These were convicted murderers being let out on the public due to their good behavior in prison. Many of them killed again, only to be sentenced for a few more years.

Western penologists have admitted that the penal system has failed utterly in reforming and rehabilitating criminals. Petty criminals enter the system and exit as well trained hardened criminals. Society ends up paying for the crimes committed against it by being obliged to provide food, clothing and shelter for criminals.

In the Islamic system, punishments are placed in three categories:

1 – Hudood : Punishments prescribed by God in a revealed text of the Qur’aan or Sunnah, the application of which is the right of God (Haqq Allah). Six offences:

  1. Drinking alcohol
  2. Theft
  3. Armed robbery
  4. Illicit sex [homosexual, pedophilia, bestiality]
  5. Sexual slander
  6. Apostasy

In a penal context, the punishment is
(a) prescribed in the public interest
(b) cannot be lightened or made heavier; and
(c) after being reported to the judge it cannot be pardoned by either the judge, political authority, or the victim.

2 – Qisaas: Retaliation. Punishment prescribed in Islamic law for murder and injury wherein an injury of equal severity is inflicted.

3 – Ta’zeer : Discretionary.

During the Ottoman administration of the Arabian peninsula hudood punishments were not applied. In the late 1920’s the Saudi regime reintroduced them and the crime rate fell noticeably. The hadd for theft up to 1970 was not implemented more than twice per year.

Six months after the introduction of Sharria in the Sudan, crime decreased by more than 40% despite President Jaffar Numeiri’s release of 13,000 prisoners at the time of decreeing Islamic law because they were not sentenced under the Sharria. Since the introduction of Islamic law in Iran, crime has dropped significantly.

Retribution is obvious in hudood punishments from their severity and the prohibition of mediation. And retaliation in qisaas as Allah said: 

وَلَكُمْ فِي الْقِصَاصِ حَيَاةٌ يَاأُولِي الْأَلْبَابِ لَعَلَّكُمْ تَتَّقُونَ

In retaliatory punishment there is life for you, o people of understanding, in order that you fear God. [2:179]

Goodheart stated in 1953:

“Retribution in punishment is an expression of the community’s disapproval of crime, and if this retribution is not given recognition then the disapproval may also disappear…”

English Law and the Moral Law, A.L. Goodheart, London, 1953, p. 93

The element of retribution – vengeance, if you will – does not make punishment cruel and unusual, it makes punishment intelligible. 

Leo Page wrote:

“Law exists for the protection of the community. It is not necessary to show that capital punishment is an absolute preventative of murder, or even that it is the only deterrent. If it can be shown that it is more effective as a deterrent than any other punishment, then I shall be satisfied that it should be retained. To hold otherwise is surely to forget the innocent victims of murder in the interest of their murderers. And I have no doubt at all that fear of the gallows is the most powerful of all deterrents.”

Crime and the Community, Leo Page, London, 1937, p. 132.

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